Unfair dismissal small business
The Australian Small Business and Family Enterprise Ombudsman has sought a review of the Small Business Fair Dismissal Code. If an employer employs less than 15 employees and complies with the Code, an employee cannot succeed in an unfair dismissal claim.
Are the changes a good thing?
The Ombudsman thinks that the Code lacks certainty about what is required of small business employers to ensure a dismissal is fair and is seeking to simplify the claims process. While we are all for ensuring a dismissal is fair, we are concerned about changes that could leave an employee vulnerable to unfair dismissal, without adequate protection. We have lived through that once before, when the Howard Government introduced the WorkChoices reforms, and we don’t want to see it happen again.
What protections are being removed?
The review would mean removing these protections:
- The requirement to try to redeploy an employee before making them redundant;
- The requirement to follow a fair procedure when dismissing an ill or injured employee;
- The reasonable person test.
There is no reason why a small business employer’s decisions shouldn’t be subject to some scrutiny. The right to a fair go all round is at the heart of our industrial relations system and decent work is one of the United Nations Sustainable Development Goals.
The Ombudsman has called on the Fair Work Ombudsman to better educate small business employers of their rights and obligations, we think this is a positive step and note that the Fair Work Commission already operates a Workplace Advice Service that is free for eligible small business employers and employees. Resolution123 is a proud partner of the service.
So what are your rights now?
If you are employed by a small business employer and you have been employed for more than 12 months you are protected from unfair dismissal. However, the dismissal will not be unfair if the employer has followed the Code. The Code is really just a way of establishing a dismissal is fair and at its core are 2 requirements:
- That there was a valid reason for the dismissal; and
- If the reason relates to your conduct, you were warned your employment was at risk before you were dismissed.
The last point does not apply to serious misconduct. You can be summarily dismissed for serious misconduct, which means dismissed without.
Have you been dismissed? You only have 21 days from the date of the dismissal to commence an unfair dismissal claim. If you aren’t sure if you have an unfair dismissal claim you can do our eligibility questionnaire or call us on 1800 RES 123.
Want to learn more? Contact us today.
